Malibu Media, LLC v. Doe

ORDER REGARDING LEAVE TO SERVE THIRD PARTY SUBPOENA
PRIOR TO A RULE 26(F) CONFERENCE

Stefan
R. Underhill, United States District Judge.

Plaintiff
Malibu Media, LLC alleges that defendant John Doe, identified
only by his IP address, committed copyright infringement by
distributing plaintiff's adult films using BitTorrent, a
peer-to-peer file distribution network. Doc. #1. Plaintiff
moved pursuant to Fed R. Civ. P. 26(d)(1) for leave to serve
a third-party subpoena on defendant's internet service
provider (“ISP”) for the limited purpose of
discovering defendant's identity; only with
defendant's identity will plaintiff be able to serve
defendant with process and proceed with the case. Doc. # 7.
For substantially the reasons set forth in plaintiff's
motion and supporting documents, I granted the motion, having
concluded that plaintiff has established good cause for entry
of this order. Doc. # 9. I write now only to clarify the
scope and limitations of my prior order.

1.
Plaintiff may subpoena defendant's ISP only to obtain
defendant's name and address, but not defendant's
e-mail addresses or telephone numbers. Plaintiff may only use
defendant's name and address, if obtained by
defendant's ISP, for the purposes of this litigation;
plaintiff is ordered not to disclose defendant's name or
address, or any other identifying information other than
defendant's ISP number, that plaintiff may subsequently
learn. Plaintiff shall not threaten to disclose any of
defendant's identifying information. Defendant will be
permitted to litigate this case anonymously unless and until
this Court orders otherwise and only after defendant has had
an opportunity to challenge the disclosure. Therefore,
plaintiff is ordered not to publicly file any of
defendant's identifying information and to file all
documents containing defendant's identifying information
under seal.

2.
Plaintiff may immediately serve a Rule 45 subpoena on
defendant's ISP to obtain defendant's name and
current and permanent address. Plaintiff shall serve
defendant's ISP with a copy of the complaint, this Order,
and the subpoena.

3.
After having been served with the subpoena, the ISP will
delay producing to plaintiff the subpoenaed information until
after it has provided defendant John Doe with:

a. Notice that this suit has been filed naming defendant as
the one who allegedly downloaded copyright protected work;

b. A copy of the subpoena, the complaint filed in this
lawsuit, and this Order; and

c. Notice that the ISP will comply with the subpoena and
produce to plaintiff the information sought in the subpoena
unless, within 60 days of service of the subpoena on
defendant by the ISP, defendant files a motion to quash the
subpoena or for other appropriate relief in this Court. If a
timely motion to quash is filed, the ISP shall not produce
the subpoenaed information until the Court acts on the
motion.

4.
Defendant's ISP will have 60 days from the date of
service of the Rule 45 subpoena upon it to serve defendant
John Doe with a copy of the complaint, this Order, and the
subpoena. The ISP may serve defendant John Doe using any
reasonable means, including written notice sent to his or her
last known address, transmitted either by first class mail or
via overnight service.

5.
Defendant John Doe shall have 60 days from the date of
service of the Rule 45 subpoena and this Order upon him to
file any motions with this Court contesting the subpoena
(including a motion to quash or modify the subpoena), as well
as any request to litigate the subpoena anonymously. The ISP
may not turn over the identifying information of defendant to
plaintiff before the expiration of that 60-day period.
Additionally, if defendant or the ISP files a motion to quash
or modify the subpoena, or a request to litigate the subpoena
anonymously, the ISP may not turn over any information to
plaintiff until the issues have been addressed and the Court
issues an order instructing the ISP to resume turning over
the requested discovery.

7.
Defendant's ISP shall confer with plaintiff and shall not
assess any charge in advance of providing the information
requested in the subpoena. If defendant's ISP receives a
subpoena and elects to charge for the costs of production, it
shall provide a billing summary and cost report to plaintiff.

8. Any
information ultimately disclosed to plaintiff in response to
a Rule 45 subpoena may be used by plaintiff solely for the
purpose of protecting ...

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